ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J(S)1557/11
DATE: 20140724
BETWEEN:
HER MAJESTY THE QUEEN
Iona Jaffe/James Clark, for the Respondent
Respondent
- and -
MOHAMED HERSI
Paul Slansky, for the Applicant
Applicant
HEARD: June 18, 19 and 20, 2014
Ruling #12: Entrapment and Other “Abuses of Process”
Publication Ban
An order has been made prohibiting the publication of any information that could identify the undercover officer
Baltman J.
[1] Mr. Hersi has been found guilty by a jury of two terrorism offences: first, that he attempted to participate in the activities of the Somali based terrorist group Al-Shabaab; second, he counselled another person (an undercover officer) to do the same.
[2] Mr. Hersi was arrested at Pearson airport on March 29, 2011, as he was about to board a flight to Egypt. He had been previously working as a security guard in a large office tower in Toronto’s financial district. The investigation into these charges was triggered by the discovery of various documents on a USB key belonging to Mr. Hersi, found at the dry cleaners where his uniform was being cleaned. Those documents included the Anarchist Cookbook, that describes how to make explosives; a Canadian Forces Department of National Defence Operational Manual, publicly available; various Islamic religious writings; and reports from Intercon Security, where Mr. Hersi worked.
[3] The combination of those documents – particularly the national Defence Manual and the Anarchist Cookbook - was suspicious to police, especially because as a security guard Mr. Hersi had access to a large office tower in downtown Toronto. They determined that further investigation was required, and installed an undercover officer (“UC”) in Mr. Hersi’s workplace, under the pretext of conducting an audit. The UC “befriended” Mr. Hersi, and over the next five months - from October 16, 2010 to March 25, 2011 - they met on approximately thirty occasions, sometimes at work but often on a social basis. The last eleven conversations, between January 28 and March 25, 2011, were intercepted pursuant to a wiretap order.
[4] Over the entire course of their conversations, Mr. Hersi outlined his plan to travel to Somalia in order to join Al-Shabaab, one of the entities listed as a terrorist organization pursuant to the Criminal Code. He explained to the UC that he intended to first go to Cairo, then to Puntland in northern Somalia, and ultimately to southern Somalia in order to join Al-Shabaab. Mr. Hersi also encouraged the UC to join Al-Shabaab, and counselled him on how to pursue that goal while avoiding police detection.
[5] Throughout their relationship Mr. Hersi and the UC exchanged numerous text messages. The UC also kept a written record of those exchanges in his notes. The UC deleted some of the text messages from his phone; moreover, when he turned his phone in at the end of the investigation, the police failed to recover any data from it.
[6] Mr. Hersi seeks a stay of proceedings based on three alleged “abuses of process”: a) entrapment; b) an improperly “prolonged investigation” by police, and/or c) an unfair “credibility battle” police created by delaying the wiretap order and deleting text messages from the UC’s cellphone. Mr. Slansky acknowledges there is no jurisprudence directly in support of the latter two grounds.
[7] On June 20, 2014, I dismissed all three motions, with reasons to follow. These are my reasons.
The Legal Framework
[8] The seminal case on entrapment, R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, describes the two ways in which entrapment may be established: (1) state authorities, acting without reasonable suspicion or for an improper purpose, provide a person with an opportunity to commit an offence; and (2) even having a reasonable suspicion or acting in the course of a good faith inquiry, police go beyond providing an opportunity and induce the commission of an offence (at paras. 115 & 126). See also R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, at para. 10.
[9] Both counsel agree that this case falls to be determined under the first category. Consequently, I must decide whether a) the police provided Mr. Hersi with an opportunity to commit an offence and, if so, b) whether at that point they had a reasonable suspicion that he was involved in terrorist activity.
The Factual Framework
[10] On January 25, 2011, Justice Wong authorized the police to intercept the applicant’s communications with the undercover officer, pursuant to s. 184.2 of the Criminal Code. The Order was based on a lengthy affidavit from Detective Constable Richard Warr, which detailed the investigation that had taken place until January 24, 2011. In his affidavit, Warr described the undercover operation as relayed to him by the undercover officer and gleaned from his review of the officer’s notes.
[11] Based on that information, and the fact that Al-Shabaab is a listed terrorist entity, Warr sought authorization to intercept Hersi’s communications with the undercover officer. He indicated his belief that Hersi intended to travel to Somalia to join Al-Shabaab, and that Hersi had assumed the role of advisor to the undercover officer.
[12] In his affidavit, Warr detailed the conversations between the UC and Hersi over the previous months. The following chart, reproduced in large part from the Crown’s factum, summarizes the relevant portions:
Date
The Evidence
October 17, 23, 24, 2010
• Hersi told the UC he was going to Egypt next year;
October 25, 2010
• Hersi expressed sympathy for Omar Khadr and certain members of the Toronto 18, but directed the officer to be quiet when someone joined them on the elevator, and talked about Egypt again;
October 30, 2010
• Hersi told the UC he would have killed a person writing anti-Muslim graffiti had he caught him;
• Hersi told the UC that he wants to live in a Muslim country;
October 31, 2010
• Hersi told the UC that it’s fine to support Al Qaeda, just not openly;
November 14, 2010
• They discussed Inspire magazine, an Al Qaeda publication. Hersi told the UC not to tell anyone he reads it, and not to trust anyone. Hersi cites the example of a friend who did not even tell his mother he was going to Somalia to fight. He warned the UC about “snitches”;
November 19, 2010
• The two men talked about Inspire. Hersi told the officer he should read “the older one”, a previous issue which describes how to make a bomb from products in your Mom’s kitchen;
• He told the officer not to disclose it to anyone if he had a plan to go to fight;
• Hersi told the UC he considered visiting Yemen but was worried that a Yemen stamp on his passport would attract negative attention;
• He told the UC that his friend who had gone to fight in Somalia had joined Al-Shabaab; he said his friend was a “good guy”, who was unfairly criticized by the media and others;
• He told the officer it should be every Muslim’s dream to die a shaheed (martyr);
December 10, 2011
• When asked if he would ever consider joining Al Shabaab, Hersi told the UC that every Muslim should seriously consider it;
• After the UC stated that he was planning to join Al-Shabaab, Hersi shook his hand and congratulated him;
• He told the UC not to tell anyone about his plans;
• He told the UC he could not trust anyone, or he could end up in jail, and “whose cause are you helping if you are in jail”
• He told the UC that you cannot get a direct flight to Somalia, and stated:
“What you gotta do is book a flight to Egypt (pointing to himself) or Nairobi (pointing at the UC) and once you’re in Africa it’s easy to cross the border with a Canadian Passport to get to Somalia. Then all you have to do is get to southern Somalia and you can find many people there to help you join whatever cause you’re there for…”
January 7, 2011
• Hersi told the UC he was going to Somalia to join Al-Shabaab;
• He planned to travel to Egypt, on March 1st, and then to “the motherland to join our brothers in Al-Shabaab”;
• He would travel to Egypt first, with family, so it would not look suspicious;
• He told the UC that he (the UC) should consider booking a two way ticket, to make it look like he is returning to Canada;
January 14, 2011
• Hersi told the UC he had been planning on joining Al-Shabaab for 4-5 years;
• He said he had plans to “come back to Canada and then leave for good”
• He told the officer to have his “alibi” straight to cover his real motive for going;
• When the UC expressed doubts about joining Al-Shabaab, Hersi told him not to listen to those thoughts, as the devil puts them in your head;
• Hersi told the UC that lots of people in that part of the world support Al-Shabaab, so all he had to do was go to the local Masjid and meet people.
[13] In his evidence Warr stated that as of November 19, he had reasonable grounds to suspect that Hersi was involved in terrorist activity of some sort, because by that point Hersi was referring to an article in Inspire magazine about making bombs, and praising his friend who had joined Al-Shabaab. Those developments, combined with the items found on the USB key, Hersi’s support for Al Qaeda and other terrorists, and his ongoing exhortations to secrecy, created in his mind reasonable grounds to suspect Hersi was involved in terrorist activity.
[14] With the additional conversation of December 10, 2010, that suspicion evolved into reasonable grounds to believe the same, as at that point Hersi specified that every Muslim should join Al Shabaab.
Submissions and Analysis
1. Entrapment
[15] As I indicated above, for Mr. Hersi to succeed in this application he must demonstrate, on the balance of probabilities, two factors: a) that the police provided him with an opportunity to commit an offence; and b) at that point they had no reasonable suspicion that he was involved in terrorist activity.
[16] Dealing first with whether the police provided him with an opportunity to commit an offence, the authorities indicate that the line between proper investigation and providing an opportunity to commit an offence can be a fine one: R. v. Bayat, 2011 ONCA 778, 280 C.C.C. (3d) 36, at paras. 2,19. Mr. Slansky asserts that the “determining factor” is who initiates the discussion of criminality: the police or the accused? He points out that in Bayat, where the accused was convicted of child luring over the internet, the court was swayed by the fact that the accused repeatedly took the lead in the conversation.
[17] While that may be a relevant factor, it is not conclusive. An example is seen in Imoro, where the trial judge relied on the fact that the officer “was the one who first raised the subject” of purchasing drugs. In reversing that decision, Laskin J.A. distinguished between “legitimately investigating a tip and giving an opportunity to commit a crime” (at para. 15). He concluded that the officer’s question “Can you hook me up?” was simply a step in the investigation, not an opportunity to traffic in drugs.
[18] It is undisputed that in this case the UC repeatedly steered the conversation toward the topics of Somalia, Al-Shabaab and terrorism. On several occasions he specifically queried Hersi regarding his intentions in travelling to Egypt and Somalia. He asked Hersi to give him electronic copies of Inspire magazine and other writings. And on December 10 he told Hersi that he was planning on joining Al-Shabaab.
[19] However, there is a big difference between stimulating someone to incriminate himself and offering him an opportunity to commit an offence. I view what occurred here as the police simply “opening up a dialogue”, akin to what occurred in Bayat (at para. 19), or initiating “exploratory” conversations that needed to be “developed”, as distinguished by Trotter J. in R. v. Williams 2014 ONSC 2370, at para. 27. It is worth noting that Hersi needed little if any prodding on any of these subjects; he proved to be an enthusiastic, opinionated and verbose participant. If the intercepts are any indication, in this relationship he did most of the talking; each time the UC broached a relevant topic, Hersi jumped in with both feet. That he now finds them stuck in his mouth is his own doing.
[20] Significantly, what the UC did not do in this case was present Hersi with an opportunity to participate in terrorism. He did not make travel arrangements for him, or suggest Hersi accompany him to Somalia; nor did he facilitate a connection to Al-Shabaab or anyone within that organization.
[21] Mr. Slansky submits that because this case is all about Hersi’s intentions, and the UC repeatedly invited Hersi to describe his intentions in travelling to Egypt and Somalia, the UC effectively offered him an opportunity to incriminate himself. While I agree Hersi’s intentions are pivotal to the first count (attempt to participate), the Crown’s case to the jury was that by the time Hersi met the UC he had already formed the intention to join Al-Shabaab. That position was well supported, in my view, by the evidence. It follows that the UC did not create that intention; he merely gave Hersi an opportunity to describe it. Engaging someone who has already decided to commit an offence into revealing his intentions is not entrapment.
[22] As for the second count, i.e. counselling to participate, the undisputed evidence is that on December 10 the UC told Hersi that he (the UC) was planning to join Al-Shabaab. However, there is no evidence he sought Hersi’s advice or encouragement until January 14, 2011, when he told Hersi that he was having doubts about whether he should join Al-Shabaab, and impliedly sought Hersi’s reassurance. That is far beyond November 19, the point at which, according to Warr’s evidence in cross-examination, the police had reasonable grounds to suspect that Hersi was engaged in terrorist activity of some kind.
[23] Warr’s evidence makes sense, because by November 19 the police already knew the following:
• Hersi’s USB key contained questionable documents;
• He had expressed support for members of the Toronto 18;
• He stated that it was fine to support Al Qaeda, just not openly;
• He read Inspire magazine and expressed interest in an article that teaches one how to make bombs out of simple ingredients;
• He praised his friend who had gone to fight for Al-Shabaab; and,
• He told the UC it should be every Muslim’s dream to die a martyr.
[24] I accept that police had a reasonable suspicion by November 19 that Hersi was engaged in terrorist activity. Their analysis was not based on a “generalized” suspicion; the factors that led Warr to this conclusion amount to, in the words of Doherty J.A., at para. 58 of R. v. Simpson, 1993 3379 (ON CA), [1993] O.J. No. 308 (C.A.) a “constellation of objectively discernible facts” which would logically be suspicious to any police agency. As the Supreme Court observed in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 27-30, the inquiry has to be fact-based and grounded in common sense. With the particular combination of evidence accumulated here, I would be very surprised if by November 19 any law enforcement agency worth its mustard was not, at the very least, suspicious that Mr. Hersi was involved in terrorist activity of some kind.
[25] In sum, I conclude that the police did not provide Hersi with an opportunity to commit an offence until January 2011, long past the point at which they had reasonable grounds to suspect he was involved in terrorist activity.
2. Prolonged Investigation
[26] Mr. Slansky argues that there should be a limit on how long police can investigate a case before laying charges, and in this case they exceeded it. He points out that police did not form reasonable grounds to believe an offence had been committed until December 10, after 18 meetings with Hersi over a two month period. He says that is too much and too long.
[27] This is a novel argument with no precedent in the jurisprudence, for good reason. There is no timetable for police investigations. As Doherty J.A. observed in R. v. Darwish 2010 ONCA 124, 100 O.R. (3d) 579 in order to properly perform its function the prosecution has to decide on the nature and scope of the investigation: “The accused is entitled to the product of that investigation, but is not entitled to dictate the nature or scope of that investigation” (para. 39).
[28] Moreover, given that police are perfectly entitled to continue to investigate after an arrest, it is difficult to see why there should be limits on how long they investigate before.
[29] Finally, courts are generally loathe to micromanage police investigations, particularly when they involve undercover officers: see R. v. Rothman, 1981 23 (SCC), [1981] 1 S.C.R. 640, at p. 689; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177 at para. 222; R. v. Riley, [2001] B.C.J. No. 2398 (S.C.), at paras. 15-18.
[30] Mr. Slansky could provide no precedent where a court stayed charges because the police took “too long” to investigate. The closest analogy in the case law is the general test for abuse of process, articulated by the Supreme Court in R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128 and reaffirmed by it in R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565, at para. 20:
I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young [(1984), 1984 2145 (ON CA), 40 C.R. (3d) 289], and affirm that “there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings.” I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the “clearest of cases”.
[Emphasis Added.]
[31] Although that statement refers to allowing an accused “to stand trial”, presumably the same principle would apply to allowing a guilty verdict to stand. In any case, on the facts before me this assertion is utterly baseless and a further waste of the Court’s time.
[32] Nothing about the investigation in this case, including its length, should shock the conscience of the community or violate its sense of fair play. On the contrary; after being alerted to a USB key belonging to Hersi that contained some troubling content, the police promptly installed an undercover officer who, over the following weeks, received admissions from Hersi of a steadily incrementing nature. By November 19, the cumulative effect of those statements created in police reasonable grounds to suspect Hersi was involved in terrorist activity. More serious admissions followed, such that by December 10 they had reasonable grounds to believe Hersi had committed a crime.
[33] To have expected anything else in these circumstances is completely unrealistic. Undercover operators can only be effective if they have the trust of those they are investigating. Gaining trust takes time. That time was well spent in this case; as Hersi acknowledged at trial, as time went on he came increasingly to trust and confide in the UC. That was reflected in the progressively incriminating nature of the admissions he made, as demonstrated in the chart above (para. 12). By November 19 – slightly over one month from the UC’s first meeting with Hersi – police had accumulated enough evidence to establish that their initial suspicions were, in fact, well grounded.
[34] I do not think the community would be offended by the length or nature of this investigation. Quite the opposite; given the devastating effects of terrorist acts and the corresponding need to prevent them, I believe the community would be alarmed if the police had done anything less. The police here were faced with a troubling individual who was potentially a threat to human lives abroad, if not ultimately here in Canada. But they had to probe carefully and surreptitiously; a more aggressive or rushed investigation might have alerted Hersi and prevented police from uncovering his true intentions. In my view, rather than being criticized the police are to be commended for their measured and effective approach.
3. Credibility Battle
[35] Mr. Slansky asserts that police deliberately created a “credibility battle” between themselves and Hersi, in two ways: first, they purposely delayed getting the wiretap order in order to give the UC time to fabricate incriminating statements from Hersi; second, the UC intentionally deleted text messages that would incriminate himself, and then the police deliberately “lost” the UC’s phone in order to prevent the forensic retrieval of any text messages that would have helped the defence.
[36] In my view, neither assertion has any validity whatsoever. Dealing first with the “delayed” wiretap, Warr in his testimony gave a highly credible explanation. He stated that although by December 10, 2010 he had sufficient grounds to obtain such an order, he was not able to complete his supporting affidavit until January 24, 2011; he explained that an affidavit of this nature takes significant time, because it was very lengthy (115 pages), and involved several meetings with the Crown, which in turn led to further re-drafting on his part. Moreover, he was absent from work for two weeks over the Christmas holidays. I accept Warr’s evidence on this point entirely, and therefore attribute no ulterior motive to the delay in getting the wiretap order.
[37] As for the second argument regarding the lost text messages, I shall dispose of this briefly, because I already dealt with nearly the identical argument in some detail in my reasons on the “Carosella” motion concerning lost evidence: R. v. Hersi, 2014 ONSC 4101. In sum, there was nothing of substance in the text messages that would have incriminated the UC or the police force behind him; they consisted of innocuous exchanges that were recorded verbatim in the UC’s notes throughout the investigation. Moreover, the texts and phone data were lost due to careless handling by police, and not through any sinister motive.
Conclusion
[38] In conclusion, a) there is no evidence of entrapment; b) police did not improperly delay the investigation, and c) they did not deliberately create a “credibility battle” by deleting text messages or losing cellphone data. Consequently, all three motions were dismissed.
Baltman J.
Released: July 24, 2014
COURT FILE NO.: CRIM J(S)1557/11
DATE: 20140724
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
MOHAMED HERSI
Ruling #12: Entrapment and Other “Abuses of Process”
Baltman J.
Released: July 24, 2014